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2010 DIGILAW 523 (HP)

HUSAN SINGH v. GURDIAL SINGH

2010-03-17

KULDIP SINGH

body2010
JUDGMENT Kuldip Singh , J.-This revision has been directed against the order dated 26.3.2009 passed by the learned Appellate Authority in Civil Misc. Application No. 64-S/6 of 2009 in main case No. 54-S/14 of 2000. The respondent had filed eviction petition against petitioner under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (for short ‘Act’) on the grounds of arrears of rent, change of user and addition, alterations. The petitioner took the defence that the land underneath the structure is owned by the State Government and the old dilapidated kaccha dhajji wall structure was completely destroyed in the land slide which took place at the site on 1.9.1990. Thereafter, the petitioner was allowed by the respondent to raise structure on the site as owner thereof in consideration of Rs. 10,000/-. The petitioner has spent about Rs. 2,00,000/- on new structure. The original kaccha structure does not exist on the spot. 2. The petition was allowed by the learned Rent Controller on 17.7.2000. The appellate authority vide judgment dated 24.2.2004 maintained the eviction of the petitioner on the grounds of arrears of rent and change of user but set-aside the ejectment order on the grounds of material additions and alterations. The petitioner filed Civil Revision No. 40 of 2004 in the High Court which was allowed on 30.12.2008 and the case was remanded to the Appellate Authority. 3. The petitioner after remand has filed an application dated 16.1.2009 under Section 24(3) of the Act seeking permission to lead additional evidence to prove the fact that electricity and water connections in the premises are in the name of petitioner by summoning the record from the relevant offices, the petitioner may also be allowed to examine an Engineer to show that the present structure existing on the site is an RCC structure. It has been stated in the application that the electricity and water bills are being submitted with the application. 4. The application has been opposed. The preliminary objections of maintainability and lack of material particulars have been taken. It has been denied that petitioner could not inadvertently or by over-sight bring to the notice of the authorities below that the electricity and water connections are in his name. Now, further inquiry is not required which is otherwise not necessary in order to adjudicate the real controversy between the parties. 5. It has been denied that petitioner could not inadvertently or by over-sight bring to the notice of the authorities below that the electricity and water connections are in his name. Now, further inquiry is not required which is otherwise not necessary in order to adjudicate the real controversy between the parties. 5. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that petitioner had obtained water connection in his name somewhere in the year 1990, the electricity connection is also in the name of the petitioner. The petitioner due to his semi literacy, over sight and bonafide mistake could not bring these facts to the notice of his counsel and, therefore, these documents could not be brought on file. In these circumstances, the application has been filed to prove that the electricity and water connections in the premises in question are in the name of the petitioner by summoning the record from the relevant offices and also to examine an Engineer to show that the present structure existing at the site is an RCC structure. The learned counsel for the petitioner has relied North Eastern Railway Administration vs. Bhagwan Dass (D) by L.Rs. AIR 2008 S.C. 2139 and Kailash vs. Nankhu and others (2005) 4 SCC 480 in support of his submissions. On the other side, the learned counsel for the respondent has opposed the revision. 6. The application dated 16.1.2009 has been filed by the petitioner under Section 24(3) of the Act which provides that the appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry it thinks fit either personally or through the Controller. 7. It is the case of the petitioner that the electricity and water bills pertaining to the premises in question were with him but due to over sight and bonafide mistake, he could not bring this fact on record that electricity and water connections in the premises are in the name of the petitioner. The petitioner through the medium of application intends to summon the record from the relevant offices to prove that the electricity and water connections in the premises are in the name of the petitioner. The petitioner through the medium of application intends to summon the record from the relevant offices to prove that the electricity and water connections in the premises are in the name of the petitioner. The petitioner has also sought permission to examine an Engineer to establish that the existing structure at site is an RCC structure. The parameters for leading additional evidence are provided in Order 41 Rule 27 C.P.C. 8. The petitioner himself has stated in the application that relevant bills were in his possession. He has not disclosed when he brought the electricity bills to the notice of his counsel. The petition was filed on 19.3.1994, some of the bills the petitioner intends to prove as per his application are prior to the filing of the petition. It has not been stated clearly in the application why steps were not taken to prove these facts when the matter was before the Tribunal and earlier when the appeal was before the Appellate Authority. It is not the case of the petitioner that the documents which now the petitioner intends to prove are based upon subsequent events. 9. The application has been filed by the petitioner about 15 years of the filing of the petition. According to the petitioner, the RCC structure was constructed in the year 1990. The grounds taken by the petitioner in the application for leading additional evidence are not available in law to the petitioner for leading additional evidence. In North Eastern Railway Administration (supra), it was held that there may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence ‘to enable it to pronounce judgment’, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. The application has been filed under Section 24(3) of the Act for further inquiry, therefore, what is required to be established by the petitioner is to make out a case for further inquiry for leading additional evidence. The petitioner has failed to make out a case for further inquiry. The application has been filed under Section 24(3) of the Act for further inquiry, therefore, what is required to be established by the petitioner is to make out a case for further inquiry for leading additional evidence. The petitioner has failed to make out a case for further inquiry. In Kailash (supra) the learned counsel for the petitioner has relied paragraph 28 of the judgment, which has nothing to do with the additional evidence, it only signifies that all the rules of procedure are the handmaid of justice. The Section 24(3) of the Act provides for further inquiry, therefore, the case for further inquiry is required to be established before further inquiry is ordered under Section 24(3) of the Act. The judgments relied by the learned counsel for the petitioner are thus not applicable in the facts and circumstances of the case. The application for leading additional evidence is not bonafide. The learned counsel for the petitioner has submitted that the learned Appellate Authority has touched the merits of the case while deciding the application. The learned Appellate Authority has considered the material properly. There is no merit in the application. 10. No other point was urged. 11. The result of the above discussion, the revision fails and is accordingly dismissed. It is, however, made clear that the learned Appellate Authority shall decide the main appeal strictly in accordance with law and any observation made while deciding the application under Section 24 (3) of the Act by the Appellate Authority shall have no bearing when the Appellate Authority will decide the appeal on merits. Interim order dated 9.4.2009 stands vacated. CMP No. 194 of 2009 Infructuous in view of disposal of the main revision.